The only question is, whether the fourth and fifth counts were obnoxious to a general demurrer. It is not controverted that upon the substantial facts alleged, the plaintiff had the right to retake the property as against the vendee or any one holding under him with full notice of the plaintiff’s rights, and this, it is said by appellant, and we presume correctly, was the point involved and discussed on the argument of the demurrer.
Appellee insists, however, that the declaration fails to show that, at the commencement of the suit, the situation alleged by the pleader still continued. In other words, while plaintiff alleged that on a day named he was, by reason of the non-payment of certain overdue notes, entitled to resume the property which “defendant unjustly detained and refused to deliver to plaintiff, though requested so to do, until, etc.,” still it did not appear but that the notes were paid before suit was commenced, thereby cutting off the rights of the plaintiff. This very technical objection, if a valid one, should hardly vitiate a declaration upon a general demurrer, and we may safely assume under our present practice that if suggested below it would have been obviated by amendment. We are not satisfied, however, that it is really valid, even upon the reasoning of the brief.
It appears default in payment of the notes at maturity terminated ipso facto the rights of the vendee; that there was such default, and therefore plaintiffs had the right to retake, which state' of things continued “until, etc.,” meaning until plaint filed. If, after default, the plaintiff waived or accepted payment, or if any facts occurred which would in law prevent him from asserting the forfeiture, it should be set up by way of defense. We are of opinion it was error to sustain the demurrer. The judgment will be reversed and the cause remanded.
Reversed and remanded.